State v. Arrington, 2019AP2065-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPATIENCE DRAKE ROGGENSACK, J.
Citation402 Wis.2d 675,976 N.W.2d 453,2022 WI 53
Parties STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Richard Michael ARRINGTON, Defendant-Appellant.
Docket Number2019AP2065-CR
Decision Date01 July 2022

402 Wis.2d 675
976 N.W.2d 453
2022 WI 53

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Richard Michael ARRINGTON, Defendant-Appellant.

No. 2019AP2065-CR

Supreme Court of Wisconsin.

Oral Argument: March 10, 2022
Opinion Filed: July 1, 2022


For the plaintiff-respondent-petitioner, there were briefs filed by Sara Lynn Shaeffer, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sara Lynn Shaeffer.

For the defendant-appellant, there was a brief by Suzanne L. Hagopian, assistant state public defender. There was an oral argument by Suzanne L. Hagopian.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

PATIENCE DRAKE ROGGENSACK, J.

402 Wis.2d 682

¶1 We review the court of appeals’1 decision reversing the circuit court's judgment of conviction of Richard Michael Arrington on the charge of first-degree intentional homicide with use of a dangerous weapon pursuant to Wis. Stat. § 940.01 (2019-20),2 as well as being a felon in possession of a firearm under Wis. Stat. § 941.29.3 On appeal, the State asks us to reverse the court of appeals, arguing that it did not violate Arrington's Sixth Amendment right to counsel when a jail inmate secretly recorded conversations with Arrington. The

976 N.W.2d 457

State further argues that defense counsel's failure to object to the admission of the recordings as evidence against Arrington was not deficient performance and did not prejudice him, so as to warrant a new trial for ineffective assistance of counsel.

¶2 We conclude that Arrington's Sixth Amendment right to counsel was not violated because the jail inmate, Jason Miller, was not acting as a State agent when he recorded his conversations with Arrington. Further, a new trial is not warranted because Arrington's counsel's performance was not deficient and Arrington was not prejudiced by his counsel's failure to object to the State's use of the recordings. Accordingly,

402 Wis.2d 683

we reverse the decision of the court of appeals and affirm the circuit court's judgment of the convictions.

I. BACKGROUND

¶3 Arrington's convictions stem from a shooting that occurred on April 2, 2016, and resulted in the death of Ricardo Gomez. The shooting itself was described as the culmination of a weeks-long feud between Arrington and a third individual, Rafeal Santana-Hermida, also known as "Shorty."

¶4 The feud began a few weeks before the shooting when a "drug deal [went] bad" and Arrington robbed Shorty at gunpoint, stealing Shorty's machine gun. Shorty responded by attacking Arrington through a car window with a knife, cutting his lip. At trial, witnesses testified that, following Shorty's attack, Arrington threatened to "[expletive] Shorty up" and stated that he was going to "handle his business." Another witness testified that Arrington was "highly upset" and had been seen carrying a machine gun.

¶5 On the day of the shooting, Shorty and his girlfriend were at Craig Taylor's house. Taylor testified that he had seen Arrington in a car near his house and was worried that he wanted to kill Shorty. Arrington was circling the block in his car and looked "like he was hunting." Taylor further testified that Arrington "had that look in his eye like he wanted to kill something." A separate witness, Lawrence Hawkins, came and left Taylor's house prior to the shooting. Hawkins testified that when he left Taylor's house, he saw Arrington parked across the street. Arrington asked him if Shorty was inside and Hawkins responded that he did not know. When he walked away, Hawkins called Taylor and told him that Arrington was outside asking about Shorty.

402 Wis.2d 684

¶6 In the moments immediately preceding the shooting, Ricardo Gomez arrived at Taylor's house. Gomez walked up to the front door and told Shorty, who was standing in the open doorway, that someone was "outside looking for him." According to Taylor, Arrington began shooting into the doorway as soon as he saw Shorty. Taylor testified that he "was right there when the bullets hit [Gomez]" and that he saw Gomez fall onto Shorty after being hit. Taylor further asserted that he did not see Shorty with a gun and Shorty "never reached for [anything]."

¶7 Two other witnesses, AVT4 and David Landrum, were in the car with Arrington on the day of the shooting. AVT, who was seated in the front passenger seat of the car, stated that Arrington rolled down her window and exchanged words with Shorty. Then Arrington started "shooting a gun right by [her] face." AVT testified that a "shell hit me in my head, and [Arrington] told me to shut up." She

976 N.W.2d 458

also never saw Shorty shooting at the car and explained that if Shorty had returned fire, she likely would have been hit in the process because she "was sitting right there." She asserted that "[t]here was no gun [that] came out [of] that house ...." This assertion was confirmed by a thorough police search of Taylor's house, the people in Taylor's house, and the neighborhood that revealed no firearms.

¶8 Following the shooting, AVT said she told Arrington that she wanted to get out of the car, and he responded, "you on a murder case with me now, you ain't going nowhere." She testified that Arrington threatened to kill her and her family if she spoke to the

402 Wis.2d 685

police. He also told her to burn her clothes and clean the car that they used the day of the shooting. AVT stated that Arrington later approached her in a different car and ordered her to get in. He had a gun in his lap and was wearing a mask and latex gloves. He threw her phone out the window of the car and drove her around for the night while threatening to "ice her" if she left. She woke up alone in the car the next morning and ran.

¶9 Eugene and Erica Herrod testified that the night of the shooting, Arrington came to their home and used bleach to clean his hands, face, and hair. He told them that he had "popped" someone and asked Eugene for a ride to Milwaukee. Arrington told Eugene that he had "fanned Shorty down." However, upon later learning that he had killed the wrong person, Arrington told Eugene that he would come back and "get that [expletive] Shorty and finish my job." Arrington testified that after the shooting, he changed his hair and appearance to try to hide from law enforcement.

¶10 After Arrington turned himself in, he was charged and brought to Brown County jail. While he was in custody, and had already made his initial appearance with counsel, Arrington began having conversations with another inmate, Jason Miller. Miller used a recording device given to him by law enforcement, to record his conversations with Arrington. In these recordings, Arrington made incriminatory statements regarding his on-going feud with Shorty and his role in the shooting of Gomez.

¶11 Finally, almost a year after the shooting, Arrington requested an interview with Detective Brad Linzmeier. In this interview, Arrington suggested, for the first time, that his shooting was in self-defense.

402 Wis.2d 686

Regarding his earlier feud with Shorty, Arrington claimed to have nothing to do with the machine gun robbery and explained that he was seeking to give Shorty money as repayment for the robbery when Shorty stabbed him through the car window. On the day of the shooting, Arrington claimed that the only reason he began to shoot was because he saw Shorty reaching into his waistband. Even then, Arrington claimed to have fired only at the porch. Arrington said that Shorty, after ducking out of the way of Arrington's bullets, fired a single shot in response to Arrington and hit Gomez. Linzmeier testified that this was the first time that he heard about Shorty having a handgun and shooting Gomez.

¶12 The case proceeded to a jury trial, which lasted six days and saw a total of forty-two witnesses testify. At trial, the State introduced the recorded evidence that it received from Miller in addition to the statements of witnesses relayed above. Defense counsel acknowledged to the court that he had the recordings "for quite some time" and had reviewed them "long before trial." He told the court he had "no objection" to their admission. He did, however, object to providing a transcript to the jury, which objection was sustained.

976 N.W.2d 459

¶13 Miller testified that, before he and Arrington began speaking, he had been helping law enforcement with an unrelated homicide investigation. Specifically Miller had been gathering information on a defendant named Antwon Powell. Miller explained that Arrington was the one who began their conversations by asking him to read the criminal complaint against him and asking whether "there was enough there."

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